The state of Texas is in the midst of a controversy with the United States. Texas has passed a law, SB4, which allows the state to arrest people and deport them. The federal government says that only the nation can make laws about immigration, and only the nation can deport people.
The argument has gone to the courts.
The Texas law
The law makes it a crime to enter Texas anywhere except through the official entry ports. People can be charged under this law up to two years after entering the country. The first offense is a misdemeanor, but a second offense is a felony.
People charged under the law can return to Mexico (the state’s only international border) or they can face prosecution.
The federal government has objected to the law, saying that it conflicts with federal law. Texas responded to this argument by referencing Article I, Section 10 of the U.S. Constitution. This part of the constitution lists things that states can’t do, including produce their own money or engage in war. The part the Texans mention says, in fact, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” They say that the hopeful immigrants entering Texas are in fact an invasion, putting the state in imminent Danger.
However, although immigration laws usually are between nations, Texas hasn’t actually entered into any agreement with a foreign power. Mexico has objected to the law, pointing out that most of the people who enter Texas illegally from Mexico are not in fact Mexicans. Texas is therefore sending illegal immigrants into Mexico when deporting these people to Mexico.
Mexico is bringing this up with the federal government, since it is the federal government which actually has authority over immigration law.
The U.S. law
The U.S. Constitution doesn’t actually mention immigration, but it is generally agreed that Article I, Section 8, Clause 18 allows the federal government to make laws on naturalization and emigration. 8 U.S.C. § 1325 of the U.S. code is the law that prohibits illegal entry, which includes entering the U.S. without coming through an official entry port.
There’s also the Supremacy Clause, Article VI, Clause 2, which says, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
People entering Texas without coming through the official entry ports, such as the Good Neighbor Bridge, are already breaking a federal law. The federal government objects to Texas arresting these people under a state law. The federal government also objects to Texas’s deporting illegal immigrants, since that is something the federal government controls.
Civil rights organizations have also noted that SB4 could allow law enforcement to stop and detain people who appear to be Hispanic, including people who have lived in Texas for more than a year. While the law is not designed to discriminate against people of different backgrounds, it clearly could be misused in this way.
State and federal government
As Puerto Rico works toward statehood, we should pay attention to controversies like these. For one thing, they reinforce the fact that nations make their own immigration laws. Sovereignty supporters who imagine that a new nation of Puerto Rico will have control over U.S. decisions on U.S. citizenship or entry should notice that the federal government doesn’t allow any other sovereign to trespass on their power to control laws on citizenship and immigration.
For another, they show that their United States and the individual states have different abilities to make laws. Under the 10th Amendment, states have control over anything the federal government doesn’t control. Those who want to make Congress decide about the languages spoken in a state of Puerto Rico will have to get over that. But states don’t make laws about the things the federal government controls. Statehood would not end the Jones Law.
Separatists sometimes try to delay statehood by demanding further definition of statehood, insisting that no votes should be taken before Congress negotiates things like language or the Jones Law. That’s not how statehood works. Those delays are nothing but delaying tactics from those who hope the majority supporting statehood can be distracted.
It’s long past time for Puerto Rico to be admitted as a state. Tell your congressional representatives that you want to see them on the right side of history.
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